2002 PLP 451 (MLD)

3. After framing of formal charge to which the appellant pleaded not guilty, the trial commenced.

4. On conclusion of the trial learned trial Court convicted the appellant under section 302, Qisas and Diyat Ordinance, in the terms stated above.

5. I have heard Mr. Muhammad Ishaque Khoso, learned counsel appearing for `the appellant and Mr. Ghulam Shabbir Memon, learned counsel appearing for the State.

6. Learned counsel for the appellant contends that the deceased was the wife of the appellant and the daughter of the deceased from the appellant was admittedly the Wali of the victim, therefore, Qatil i‑Amd committed by the appellant was not liable to Qisas. He submitted that the conviction and sentence awarded to the appellants thus cannot be sustained.

7. Learned counsel appearing for the State has not been able to controvert the legal position and has conceded to the remand of the case for fresh decision.

8. Perusal of the F.I.R. and prosecution evidence reveal that deceased Mst. Haseena was the wife of the appellant. A daughter was born out of such wedlock. The said daughter is a Wali .of the deceased and is also the direct descendent of the offender/appellant.

9. According to the provisions contained under section 306, P. P. C. , Qatl‑i‑Amd shall not be liable to Qisas, inter alia, in a case when any Wali of the victim is a direct descendant, howlowsoever, of the offender.

10. According to the provisions of section 308 where an offender guilty of Qatl‑i‑Amd is not liable to Qisas under section 306, P.P.C., or the Qisas is not enforceable under clause (c) of section 307, P.P.C., he shall be liable to Diyat.

11. In the similar circumstances Honourable Supreme Court in the case Khalil‑uz‑Zaman v. Supreme Appellate Court, Lahore and 4 others reported in PLD 1994 SC 885 was pleased to observe as under:‑‑ (10) ........................ It was apparent on the face of record that Mst. Amina Wali of the deceased was direct descendant of the offender. Language of sections 306 and 308, P. P. C. , is plain enough to show that Qatil‑i‑Amd committed by the petitioner was not liable to Qisas and Qatl‑i‑Amd not liable to Qisas is filly punishable under section 308, P.P.C only ..

12. On arriving at the conclusion that the offender/appellant was not liable to Qisas, Honourable Supreme Court was pleased to remit the case to the Lahore High Court for fresh decision in accordance with law.

13. The facts and circumstances of the case in hand are exactly akin to the above case decided by Honourable Supreme Court. In the present case also the deceased was the wife of the appellant and the daughter of the appellant is the Wali of the victim.?

14. In view of the law, supported by the verdict of the Honourable Supreme Court I am fully convinced that the conviction and sentence awarded to the appellant under section 302, P.P.C could not be maintained. Accordingly the impugned judgment of conviction and sentence is set aside. The case is remitted to the trial Court for fresh decision strictly in accordance with law in light of the above observations.

15. Appeal stands disposed of in the above terms. H.B.T./M‑280/K Case remanded.